By the Court,
Dixosr, C. J.When the question arises as to what constitutes a sufficient delivery of goods and chattels upon a contract of sale, I think a distinction is to be taken between the rights of the vendor and vendee, and those of creditors of the vendor and subsequent purchasers from him without notice. Such distinction is plainly recognized in Butterfield v. Baker, 5 Pick., 525. In other words, I think the distinction is between what constitutes a delivery and acceptance of the goods, or a part of them, under the second subTdivision of the third section of the statute of frauds, and what constitutes an immediate delivery followed by an actual and continued change of possession, under the fifth section. R. S., ch. 107. By attending to this distinction, I think any apparent conflict in the decided cases is easily reconciled.
The authorities cited by the plaintiff’s counsel to sustain the delivery in this case, are Chaplin v. Rogers, 1 East, 192; Jewett v. Warren, 12 Mass., 300; Rice v. Austin, 17 Mass., 205; Olyphant v. Baker, 5 Denio, 379 ; and Wooster v. Sherwood, 25 N. Y., 278.
Chaplin v. Rogers was an action by the vendor against the vendee for goods sold and delivered; and the question was upon the seventeenth section of the English statute, which is our third section. The plaintiff had sold the defendant a stack of hay, the price of which was above ten pounds, and there was no note or memorandum in writing of the contract, and no part of the purchase money had been paid by the defendant. The plaintiff was put to the proof of the delivery of the hay, which he maintained by showing that the defendant had sold part of the hay to one who had taken it away. *347This was held sufficient- to prove that the defendant had the possession; inasmuch as he had made a valid sale of the hay, and dealt with the property as his own. Lord Kenton observed, that where goods are ponderous and incapable, as these of being handed over from one to another, there need not be an actual delivery; but that it may be done by that which is tantamount, such as the delivery of a key of a warehouse in which the goods are lodged, or by delivery of other indicia of property. This is no doubt the correct rule of law in such cases, where the articles sold are ponderous or bulky, and incapable of actually being handed over from one to another.
Jewett v. Warren was also an action between the vendor and vendee; or, what is the same thing, between the vendee and the administrator of the estate of the vendor, who had died. The administrator stood in the place of and represented the vendor. It was trover by the vendee against the administrator for a quantity of logs. The deceased vendor had executed a bill of sale of the logs, and I do not see how any serious question could have been made in the case. The logs were rafted at a mill, in a boom, and so remained until the admin.-istrator inventoried and took possession of them as part of the estate. It was held that there was all the delivery which could have been usefully made of property of that nature.
Rice v. Austin was the case of an attaching creditor; and it was held that the plaintiff, the consignee of the timber, was in the actual possession. It was very clear that Lindsay, the debtor, was out of possession, and had lost all control over the property.
Olyphant v. Baker was also a case between vendor and ven-dee. It was assumpsit for goods sold and delivered. The contract was in writing and signed by the defendant, and the question was, whether the barley had been weighed so as to ascertain the quantity and pass the title to the defendant.
Wooster v. Sherwood was trover by the plaintiff for a quantity of barley purchased by him of one Haight. The defendant *348bad come into possession by purchase from one Camp. Wooster bought sufficient barley of Haight, a brewer, “to make malt enough, to ' be made in the brewery,” to pay a sum of money then advanced by Wooster. Wooster did not remove the barley, but it remained with Haight until he sold the brewery and contents to Camp, with notice of the facts and subject to Wooster’s rights. Camp sold to Sherwood, who had no notice of Wooster’s claim. The contract of sale from Haight to Wooster was in writing and signed by Haight, so that the case presented no question under the third section of the statute of frauds. It was a good sale as between Wooster and Haight, and the latter having sold to Camp with full notice of Wooster’s rights, Camp acquired no interest in the property, and, of course, could transfer none to Sherwood. It was not the case of property remaining in the possession of the vendor, and sold by him to a bona fide purchaser, or attached by his creditors.
The case at bar differs from all these, in this, that it is a contest between the plaintiff, a prior mortgagee of the property, who had permitted his mortgage to lapse for want of the affidavit prescribed by the fifth section of the act regulating chattel mortgages, and the filing of the same (R. S., ch. 45), and the defendant who is a subsequent mortgagee for a valuable consideration without notice. It is admitted that the year had expired upon the plaintiff’s mortgage without renewal by affidavit at the time the mortgage to -the defendant was executed and filed ; but the plaintiff relies upon the fact that he had taken possession of the stacks of wheat before the expiration of the year. If the plaintiff had so taken possession and held it at the time of the execution of the mortgage to the defendant, there can be no doubt, upon that fact appearing, that he would be relieved from making and filing the affidavit, and that his claim under the mortgage would be good as against subsequent purchasers and mortgagees. Otis v. Sill, 8 Barb., 102. The question is, whether the plaintiff did so take and hold the *349possession. I think, as against the defendant, who is a “ mort ’ gagee in good faith,” that he did not, and under the fifth section of the act regulating chattel mortgages, above cited, that his mortgage is absolutely void as against the defendant. Such was the decision of the Court of Appeals in Ely v. Carnley, 19 N. Y., 496, under a similar statute. The question is not whether the delivery to the plaintiff was good as between him and the mortgagor, Mrs. Bishop ; for as between them it may have been sufficient, or as against her the plaintiff’s claim may still be good, though the mortgage was not renewed or possession taken by him. Wescott v. Gunn, 4 Duer, 107. The delivery and possession required by the third section of the act as amended by chapter 166, Laws of 1859, in order to dispense with the filing of the mortgage or its renewal by affidavit, is an immediate delivery of the whole property and a continued change of possession. Benedict v. Smith, 10 Paige, 126. It must be the same clear, unequivocal and exclusive change of possession as is required by the fifth section of the statute of frauds, and under that section I know of no decisions making an exception in favor of ponderous or bulky articles.
; Here there was no actual change of possession.' The stacks of wheat remained upon the premises of Mrs. Bishop and in her possession and control, after the alleged conversation, the same as before. Nothing passed between her, or her agent, and the plaintiff, but mere words. The plaintiff had exercised no dominion over the property, or right of possession, nor had Mrs. Bishop assented to any, previous to the execution of the mortgage to the defendant. On the other hand she con„ tinued to assert her title and right of possession. Her mort-"* gage to the defendant was such an assertion. For these reasons I am of opinion that the mortgage of the plaintiff is void as against the defendant.
The objection that the case should have been submitted to the jury, I do not think amounts to anything. There was *350nothing to submit to the jury. The admissions of the parties put the facts beyond controversy.
I think the judgment of the court below should be affirmed.
Judgment affirmed.